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ELCDismissedNot stated in judgment· [2025] KEELC 3480 (KLR)

Nzeki (Suing on Behalf of Lukenya West Association) & 2 others v Kenya Commercial Bank Limited & 3 others (Environment and Land Case E088 of 2024) [2025] KEELC 3480 (KLR)

Environment and Land Court
30 April 2025
NMN.A. Matheka
2,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos refused to stop the sale of disputed Athi River land, saying the ownership questions must wait for a full hearing.

What this practically means

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Executive summary

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The Plaintiffs, representing three societies with over 9,000 members, moved the Environment and Land Court at Machakos by notice of motion dated 23rd October 2024 seeking temporary and permanent injunctions restraining the 1st Defendant from advertising, selling or alienating LR Nos. 8784/4 and 8786 at Athi River, Mavoko, and a declaration that they own the land by adverse possession, having resided on it for over 14 years. They alleged that agents of the 1st Defendant were surveying and marketing the land for sale despite the absence of valid titles or charges, and relied on a 7th May 2021 High Court judgment (East African Portland Cement Co. Ltd v Attorney General) which they said vitiated the 2nd Defendant's titles. The 1st Defendant opposed, contending the matter was sub judice given other pending suits and that the High Court judgment never vitiated the titles. The court set out the Giella v Cassman Brown and Nguruman principles - prima facie case, irreparable injury, balance of convenience - together with the authorities defining each. Applying the principle that the court should opt for the lower rather than the higher risk of injustice, and noting it had not had the opportunity to interrogate the parties' documents at this interlocutory stage, the judge concluded the lower risk lay in refusing the injunction. The application was dismissed with costs, and the parties were directed to comply with Order 11 and fix the suit for hearing.

Key legal issues

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01

Prima facie case

Holding

The court did not make a definitive finding, holding it could not assess the claim without interrogating the documents of both sides

Reasoning

The court acknowledged the Giella and Nguruman tests and the Plaintiffs' claim of adverse possession exceeding 14 years, but reasoned that the historical ownership of the suit properties was contested, with other pending suits and a disputed High Court judgment on the titles. Without interrogating the documents underpinning the claim and the Respondent's documents, the court could not conclude the Plaintiffs had surmounted the first hurdle.

p. 5
02

Balance of convenience / risk of injustice

Holding

The balance tilted against granting the injunction; the lower risk of injustice was in refusing interim orders

Reasoning

Applying the principle from Amir Suleiman vs Amboseli Resort Limited, the court weighed the risk of injustice pending trial. Given the contested ownership history, the existence of other pending matters and the inability to assess the documentary record at the interlocutory stage, the court concluded there was a lower risk in refusing the injunction than in granting it, preserving all questions for the full trial.

p. 5

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially satisfy the three requirements of prima facie case, irreparable injury and balance of convenience
  • In interlocutory relief the court should opt for the lower rather than the higher risk of injustice

Court orders

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  1. 1.The application is not merited and is dismissed with costs
  2. 2.Parties are advised to comply with Order 11 and fix the matter for hearing

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 4
  • Land Registration ActSection 68
  • Constitution of KenyaArticles 40 and 60(1)(b)

Cases cited (8)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) EKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factor Company Ltd & 2 others
    (2016) eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    (2004) eKLR
  • Robert Mugo Wa Karanja vs Ecobank (Kenya) Limited & Another
    (2019) eKLR
  • East African Portland Cement Company Limited vs Attorney General
    Machakos ELC Petition No. 20A of 2020
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010; Article 40 & 60(1)(b) of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nzeki (Suing on Behalf of Lukenya West Association) & 2 others v Kenya Commercial Bank Limited & 3 others (Environment and Land Case E088 of 2024) [2025] KEELC 3480 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3480/eng@2025-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.